Reprint from VLW:
Lawyers and doctors agree, cap can go up
Published: November 3, 2010
The Virginia Trial Lawyers Association and the Medical Society of Virginia have agreed on a compromise for the cap on medical malpractice damages, which has stayed at $2 million since 2008.
The cap would increase by $50,000 each year for 20 years beginning July 2012 and reach $3 million in 2032.
“I can’t say anyone is thrilled with this outcome,” said VTLA executive director Jack Harris, but it is the result of more than a year of meetings held under a threat from the chairmen of the House and Senate Courts of Justice Committee.
Del. David B. Albo, R-Fairfax, and Sen. Henry L. Marsh III, told the parties in 2009 to come up with a compromise or the legislature would impose one that one side, and probably both, would not like.
Negotiations began in June 2009, and the sides told the legislators earlier this year that they would continue to work on the issue rather than submit legislation.
“We’ve had a good number of meetings, and I think they’ve been excellent meetings,” Harris said.
His counterpart with the medical society, Rufus C. Phillips, said, “It was a lot of hard work to get the parties to this agreement. We came to a strong level of mutual respect in the process.”
Dr. Cynthia Romero, the MSV president, said the deal “is a win-win for patients and physicians alike, preserving access to top quality health care while also continuing to provide a fair and reasonable med mal tort system in Virginia.”
VTLA President Matt Murray said the “VTLA believes that for the sake of those who are severely injured through medical malpractice, it is essential that the cap once again begins to increase and that it continues to increase annually because the costs of medical care will certainly be increasing.”
Murray said the VTLA remains adamant in its criticism of the cap. It is arbitrary, an abrogation of the right to trial by jury and the injustice from it is visited on the most severely injured, he contended.
The reality, however, is that the General Assembly has shown no inclination to remove the cap and the Supreme Court of Virginia has upheld its legality.
On the other hand, said W. Scott Johnson, MSV’s general counsel, physicians are looking for stability and assurance of what their medical malpractice insurance premiums are likely to be. Only with that knowledge can they determine what patients they will be able to treat, he said.
Phillips said the cap has brought more insurers into the market and stabilized premiums.
Harris said he expects that the MSV and the VTLA will continue to disagree over other issues related to access to medical care and patient safety, such as the process of reviewing medical errors.
But they have agreed that neither will introduce legislation to change applicability of the cap, such as having it apply to individual defendants, as trial lawyers would prefer, or a cap within the cap on non-economic damages, a provision favored by physicians.
Albo said, “I’m just really happy that they came to an agreement instead of me making it for them.”
He said he has not been asked to sponsor the legislation that would put the agreement into effect, “but I’d be honored to do it.”
He demurred to a suggestion that he could take pride in authorship of the agreement, “but I can certainly take pride in getting the parties together and giving them tough love.”
He said he saw neither side as a villain in the dispute. “Both of them are looking out for the patient.”
But he and Marsh called the meeting after the 2009 legislative session and told the parties that they faced “euphoria or total devastation” if they did not come to an agreement.
He proposed an escalator such as the one that increased the cap in increments from $1.5 million to $2 million between 1999 and 2008.
“The agreement is wonderful because of its simplicity,” he said.
VTLA’s negotiating team consisted of Harris, Charles J. Zauzig III of Woodbridge and Stephen W. Bricker of Richmond, both former VTLA presidents, and Thomas G. Smith of Fairfax, the association’s legislative chairman.
MSV’s team was composed of Phillips, Scott, MSV Senior Vice President Michael Jurgensen and Dr. Daniel Carey, a cardiologist form Lynchburg who was the MSV president during much of the negotiations.
A third major player in state healthcare, the Virginia Hospital and Healthcare Association, participated in the negotiations but did not join in the announcement of the agreement.
Katharine M. Webb, a senior vice president at VHHA, said the agreement on the cap may be reasonable. “We just would argue that it doesn’t go far enough if we want to get to quality and safety,” she said.
VHHA remains concerned about the effect of a 2006 case from the Supreme Court of Virginia, Riverside Hospital Inc. v. Johnson (VLW 006-6-108) on the ability of health care providers “to openly, honestly and confidentially to look at what cause harm in the first place,” she said.
Webb said VHHA’s position was that any agreement required addressing the incident review process as well as the cap.
Riverside drew a distinction between the facts of a medical mistake and the deliberations by healthcare providers about the nature of the mistake and how to make sure that it doesn’t happen again.
Plaintiffs’ attorneys have a right to discover the facts but not to get information about the deliberations or conclusions of the healthcare providers about the incident, the court held.
Harris said VTLA’s position is that the Virginia Supreme Court got it right. Healthcare providers “have never been able to put forward any specific example of what the problem is,” he said.
Albo and Marsh made it clear they regarded the cap and the review process as separate issues when they urged the parties to come to an agreement, and MSV and VTLA negotiated with that understanding, Harris added.
VTLA went so far earlier this year as to offer to have a different negotiating team work on the review process with VHHA, but no meetings have occurred, Harris said.
VHHA negotiators were president Laurens Sartoris; Vice President and General Counsel Susan C. Ward; Donald Lorton, chief financial officer of Carilion Clinic in Roanoke and F. Dixon Whitworth Jr., chairman of the board of trustees of Valley Health, which operates four hospital in the Shenandoah Valle and two in West Virginia.